DECISION ON CONFIDENTIAL PROSECUTION MOTIONS
FOR PROTECTIVE MEASURES AND NONDISCLOSURE AND CONFIDENTIAL
ANNEX A

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The Office of the Prosecutor:

Mr. Jan Wubben

Counsel for the Accused Mile Mrkšic:

Mr. Miroslav Vasic

Counsel for the Accused Miroslav Radic:

Mr. Borivoje Borovic
Ms. Mira Tapuskovic

Counsel for the Accused Veselin Šljivancanin:

Mr. Novak Lukic
Mr. Momcilo Bulatovic

TRIAL CHAMBER II (“Trial Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in
the Territory of the Former Yugoslavia since 1991 (“Tribunal”),

BEING SEISED OF a “Prosecution’s Motion for Protective
Measures of Sensitive Witnesses”, filed confidentially by
the Office of the Prosecutor (“Prosecution”) on 17 December
2004 (“First Motion”), seeking orders pursuant to Articles
20 and 22 of the Statute of the Tribunal (“Statute”) and Rules
66 and 69 of the Rules of Procedure and Evidence (“Rules”)
for:

(1) three sensitive witnesses identified as P001, P002 and
P003 (“Three Sensitive Witnesses of the First Motion”) to
be referred to by pseudonyms during the pre-trial phase ;
and

(2) delayed disclosure of the names and unredacted statements
of the Three Sensitive Witnesses of the First Motion, until
thirty days prior to the start of trial,

FURTHER BEING SEISED OF a “Prosecution’s Motion for
Order of Protective Measures”, filed confidentially by the Prosecution
on 31 January 2005 (“Second Motion”), seeking orders pursuant
to Articles 20, 21 and 22 of the Statute and Rules 53, 54, 69
and 75 of the Rules for:

(1) two sensitive witnesses identified as P009 and P010
(“Two Sensitive Witnesses of the Second Motion”) to be referred
to by pseudonyms during the pre-trial phase of the proceedings;
and

(2) delayed disclosure of the names and unredacted statements
of the Two Sensitive Witnesses of the Second Motion, until
thirty days prior to the start of trial; and

(3) fifteen witnesses (“Fifteen Witnesses of the Second
Motion”), nine of whom have been granted protective measures
in previous trials before the Tribunal (“Nine Witnesses of
the Second Motion previously granted Protective Measures”),
and out of which two are the Two Sensitive Witnesses of the
Second Motion, to be granted protective measures during the
trial phase of the proceedings,1

NOTING the “Defence Joint Response to Two Prosecution
Motions for Protective Measures filed on 17.12.2004 and 31.01.2005”,
filed confidentially by the Defence on 14 February 2005 (“Response”),
in which the Defence objects to granting the requested protective
measures to P004 and P014,

NOTING the Prosecution submissions that the protective
measures requested during the pre-trial proceedings for the
Three Sensitive Witnesses of the First Motion and the Two
Sensitive Witnesses of the Second Motion are consistent with
the rights of the accused and are necessary to safeguard the
security of the witnesses in question and the integrity of
both evidence and proceedings2 and that, in the case of each of these witnesses,
exceptional circumstances exist to merit the application of
protective measures,3

NOTING that Article 20 (1) of the Statute requires
the Trial Chamber to ensure that proceedings are conducted
with full respect for the rights of the accused and due regard
for the protection of victims and witnesses, and that Article
21 (2) of the Statute entitles the accused to a fair and public
hearing, subject to Article 22 of the Statute, which states
that the Tribunal shall provide, in the Rules, for the protection
of victims and witnesses,

CONSIDERING that the requirement that the accused
be granted a fair trial dictates that the Trial Chamber should
only grant protective measures where it is properly shown,
in the circumstances of each witness, that the protective
measures sought meet the standards set out in the Statute
and the Rules,4
as expanded by the Tribunal’s jurisprudence,5 and that in the case of protective measures
during pre-trial proceedings the balance dictates clearly
in favour of the accused’s right to know the identity of witnesses
upon which the Prosecution intends to rely,6

CONSIDERING that the Trial Chamber is satisfied that,
in light of the material provided by the Prosecution,7 and in accordance with the criteria set
out by the Trial Chamber in previous decisions,8 including “the likelihood that Prosecution
witnesses will be interfered with or intimidated once their
identity is made known to the accused and his counsel” and
“the length of time before the trial at which the identity
of the victims and witnesses must be disclosed to the accused”,
the Prosecution has established that exceptional circumstances
exist to merit the application of the protective measures
requested during the pre-trial proceedings for the Three Sensitive
Witnesses of the First Motion and the Two Sensitive Witnesses
of the Second Motion, namely that their security and that
of their families is currently at risk, in that each has been
the target of specific incidents of serious physical and verbal
threat,

CONSIDERING that the Trial Chamber will follow its
own practice and that of other Chambers with respect to the
time at which unredacted disclosure of the identities and
statements of these witnesses should be made available to
the Defence and will fix a period of thirty days prior to
the anticipated start of trial as an appropriate time before
which the Prosecution must disclose the unredacted statements
of witnesses granted protective measures under Rule 69(A)
of the Rules,

NOTING the Prosecution’s submissions that the protective
measures requested during the trial proceedings for the Fifteen
Witnesses of the Second Motion do not interfere with the right
of the Accused to a fair trial,9 and are required to safeguard the privacy and
security interests of the witnesses and to ensure the integrity
of the evidence and the proceedings,10 and that in the case of the Nine Witnesses
of the Second Motion previously granted Protective Measures,
the initial court order on protective measures should remain
unless rescinded by the Trial Chamber that imposed the initial
order,11

NOTING further the Defence submission that the requested
protective measures should be denied for P004 and P014 as
these witnesses have previously testified without any protective
measures in other criminal proceedings,12

NOTING that Rule 75 (A) of the Rules provides that
a Judge or Chamber may order appropriate measures for the
privacy and protection of victims and witnesses, provided
that the measures are consistent with the rights of the accused,
and that Rule 75 (F)(i) provides that once such protective
measures have been ordered, they shall continue to have effect
mutatis mutandis in any other proceedings before the
Tribunal, unless and until they are rescinded, varied or augmented
in accordance with the procedure set out in Rule 75,

CONSIDERING that the Trial Chamber has to determine
where the balance lies between the accused’s right to a fair
and public trial, the right of the public to access of information
and the protection of victims and witnesses, and that how
this balance is struck will depend on the facts of each case,13 but that any curtailment of the accused’s
right to a fair trial must be justified by a genuine fear
for the safety of the witness or the members of his family,14

CONSIDERING that the Trial Chamber is satisfied,
on the basis of the supporting material provided, that in
the cases of P005, P008, P013 and P016, the Prosecution has
established, in accordance with the standard set out in previous
decisions,15
that should it become publicly known that the witness has
testified, there would be a real risk to the security of the
witness or to the security of his or her family,

CONSIDERING that in the cases of the Nine Witnesses
of the Second Motion previously granted Protective Measures,
the Trial Chamber considers it appropriate to extend the measures
granted in previous trials before the Tribunal to the testimony
of the witnesses in these proceedings,

CONSIDERING that, given the Defence objection to
the protective measures sought for P004 and P014, the Trial
Chamber denies the requested protective measures for P004
and P014 pending the provision of further material supporting
the existence of a real risk to the security of P004 and P014
or to their families,

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20, 21 (2) and 22 of the Statute
and Rules 54, 66, 69, 75 and 79 of the Rules;

HEREBY GRANTS THE MOTION IN PART AND ORDERS THAT:

(1) until further Order, the Prosecution shall refer to
the Three Sensitive Witnesses of the First Motion as P001,
P002 and P003, and the Two Sensitive Witnesses of the Second
Motion as P009 and P010, in all public proceedings before
the Tribunal;

(2) the Prosecution shall continue to use pseudonyms when
referring to the Three Sensitive Witnesses of the First Motion
and the Two Sensitive Witnesses of the Second Motion in public
until such time as each witness is called to testify and the
protection set out in this Decision shall apply to these witnesses
until further Order;

(3) the Prosecution shall disclose the full and unredacted
statements of the Three Sensitive Witnesses of the First Motion
and the Two Sensitive Witnesses of the Second Motion no later
than thirty days before the anticipated start of the trial,
unless otherwise ordered by the Trial Chamber;

(4) the Prosecution shall be at liberty to apply for specific
protective measures for the Three Sensitive Witnesses of the
First Motion, including the use of voice and image distortion
and closed session, prior to the date on which each witness
is to testify, pursuant to Rule 75 of the Rules;

(5) the Prosecution shall refer to the Fifteen Witnesses
of the Second Motion, with the exception of the two witnesses
to whom the Defence has objected, as P005, P006, P007, P008,
P009, P010, P011, P012, P013, P016, P017, P018 and P019 in
all public proceedings before the Tribunal;

(i) the names and other identifying data of the witnesses
granted protective measures in this Order (“the Protected
Witnesses”), including their whereabouts, shall not be disclosed
to the public;

(ii) the names, addresses, whereabouts of and identifying
data concerning the Protected Witnesses shall be sealed
and not included in any public records of the Tribunal ;

(iii) to the extent that the names, addresses, whereabouts
or other identifying data concerning the Protected Witnesses
are contained in existing public documents of the Tribunal,
that information shall be expunged from those documents;

(iv) documents of the Tribunal identifying the Protected
Witnesses shall not be disclosed to the public or the media;

(8) all hearings to consider the issue of protective measures
for specific witnesses shall be held in closed session and
only released to the public and the media after review by
the Prosecution, in consultation with the Victims and Witnesses
Section ;

HEREBY DENIES THE MOTION IN PART AND ORDERS THAT

(9) the requested protective measures of pseudonym, image
distortion and voice distortion for the witnesses identified
in the Second Motion as P004 and P014 and identified in Confidential
Annex A appended to this decision are denied pending the provision
of the material defined in paragraph 10 of the disposition
below,

AND FURTHER ORDERS THAT

(10) the Prosecution may file further material supporting
the existence of a real risk to the security of P004 and P014
or to their families, if it so wishes.

For the purpose of this decision, “the public” shall mean
and include all persons, governments, organisations, entities,
clients, associations and groups, other than the Judges of
the Tribunal, the staff of the Registry, the Prosecutor and
her representatives, the accused in this case, the defence
counsel, legal assistants and other members of the Defence
team, their agents or representatives. “The public ” shall
also include, without limitation, family, friends and associates
of the accused; accused in other cases or proceedings before
the Tribunal; defence counsel in other cases or proceedings
before the Tribunal and the media and journalists.